Culver v. City of Warren (84 Ohio App. 373, 1948)

Hurd, P. J.

This action in equity, now in this court ■on appeal on questions of law and fact, originated in the Common Pleas Court of Trumbull county wherein a judgment was rendered in favor of the defendants, appellees herein, denying the prayer of the plaintiffs’ amended petition for a declaratory judgment, injunction and equitable relief.

For brevity and convenience the parties will be •designated hereinafter as plaintiffs and defendants as they appeared in the trial court.

The defendants are the city of Warren, the duly •elected, qualified and acting mayor of the city, the •duly appointed, qualified and acting public service and safety director of the city, the superintendent of parks, the Veterans Swim Club, a corporation not for profit organized under the laws of Ohio, and the Attorney ■General of Ohio, the latter being made a party defendant because under the laws of Ohio it is so required.

This action relates exclusively to the rights of •colored citizens to use and enjoy the Warren municipal swimming pool built at public expense with federal and municipal funds, located on Mahoning avenue adjacent to Packard Park in the city of Warren.

In their amended petition the plaintiffs allege that they are citizens, residents and taxpayers of the city of Warren, and are the president and secretary respectively of the Warren, Ohio, branch of the National Association for the Advancement of Colored People,, an unincorporated association formed for the purpose of obtaining equal rights and opportunities for negro citizens and residents of the city of Warren and to fight injustices in courts when based on race prejudice, on behalf of themselves and other persons similarly affected at the time of the grievances complained of in the amended petition.

In August 1933, the council of the city adopted resolution No. 1143 “declaring the necessity for the construction of a concrete swimming pool with filters and bathhouse facilities upon city lands adjacent to-Packard Park at an estimated cost of $40,000; to take-advantage of the benefits available under the ‘National Recovery Act’ by constructing such public works as a means of providing employment and authorizing an-application to the Federal Emergency Public Works-Administration for a grant of thirty per cent of such-sum and a loan of seventy per cent thereof to be acquired by mortgage upon the improvement.”

Section 1 of the resolution is as follows:

“Warren City Council does hereby find and determine the necessity for the construction of a reinforced concrete swimming pool with filter and bathhouse-facilities, at an estimated cost of $40,000 to be constructed upon city-owned park lands adjacent to-Packard Park; as a means of providing work for numerous unemployed citizens of the city of Warren.”

The property upon which the swimming pool was-•constructed had been originally purchased by the city with municipal funds for the benefit of Packard Park Commission by ordinance No. 208 adopted in February 1913. In February 1934, ordinance No. 208 was amended by ordinance No. 2683, whereby the property was purchased for the city, removed from the control ■of the Packard Park Commission and placed under the jurisdiction of the public service director of the ■city. A reinforced concrete swimming pool with bathhouse and filtration facilities, denominated as the Warren Municipal Swimming Pool was constructed and ■completed some time in 1934 and was open to the use of the general public without discrimination as to race or color during the successive summer seasons from the time of its opening to the year 1946. However, in the year 1946 as appears from the record, difficulties arose concerning the use of the pool by members of the negro race. The testimony of the mayor of the city of Warren under cross-examination is illuminating on this subject and is in part as follows:

“Q. Directing your attention to the opening of the swimming pool for the season of 1946 was there any •discussion between you and a representative of the colored people as to the use of the swimming pool by them? A. Yes, sir.

■* * # * *

“Q. What was the substance of the discussion? A. That some arrangement might be made whereby we •could arrive at a date or some compromise as to the use of the pool because the pool the year before had been closed, because of this particular situation arising.

“Q. At first I believe you took the position that the swimming pool should be open for all citizens regardless of all races or creeds? * * * A. I wanted to open the swimming pool for use of the public. I got the-legal opinion from Mr. Del Bene that under the laws of Ohio I could — there was no way we could open it with discrimination and we opened it under that basis-.

“Q. In other words, as I get it, you got the opinion-from Mr. Del Bene the city solicitor? A. That’s right.

“Q. To the effect that there was no way to open the pool unless you opened it to all citizens? A. That’s right.

“Q. And that was your position? A. That’s right.”'

It appears further that during the swimming season of 1946 a number of white citizens, who objected: to swimming in the pool with persons of the negro-race, started going to Niles, Ohio, and- other adjoining cities to swim in their pools. The negro citizens were then approached through such organizations as-the Warren branch of the N. A. A. C. P. the Warren-Urban Society and requested to agree to restrict their use of the swimming pool to one day per week which-they declined to do. Thereafter on July 16, 1946, the-city council of Warren enacted emergency ordinance-No. 3518 authorizing the public works director to lease-the pool for the swimming season of 1946 and 1947. The pool was not leased during the swimming season-of 1946 but was leased for the season of 1947 to the-defendant, Veterans Swim Club. This is a private-corporation not for profit, evidently formed for the purpose of taking over the operation of the swimming pool, since its charter is dated January 20, 1947, and its constitution was adopted on June 3, 1947, three days before it acquired the lease from the city.

The purposes of the corporation set-forth in its constitution are as follows:

“(a) To incorporate swimming in the recreation program of veterans and their families ;

“ (b) To provide a place for swimming and recreation for veterans of the United States Armed Forces, ■all wars, and their families.'” (Emphasis added.)

Under the membership clause appears the following:

“(a) All prospective members shall be recommended for membership of the club.

“(b) All members must be veterans of the United States Armed Forces and relatives of a veteran.

“(c) All new members shall have the status of social members for a period of one year;

“(d) All applicants must pass a two-thirds vote (by secret ballot) of the executive board.” (All emphasis added.)

On June 6, 1947, the city of Warren leased the Warren municipal pool to the Veterans Swim Club for the season of 1947 without any consideration other than the provision in the lease contained in item 15 as follows:

“The successful bidder agrees to pay to the city of Warren on a bi-weekly rental equal to ten per cent of the gross receipts collected by the successful bidder, incident to the operation and maintenance of such leased premises.”

Other covenants are:

“The successful bidder shall keep proper books of accounts and records and the city shall have the right to audit such books and records as it deems necessary by its proper officers.”

“The city shall furnish all the buildings and equipment connected with the area and now located on the premises, described in ordinance No. 3518-46 except the personnel needed to manage and conduct the said premises.”

“The city reserves the right to make all the necessary repairs and alterations as it deems necessary during the term of the lease.” (Emphasis added.)

The record indicates that after the lease was executed the Veterans Swim Club through its agents and servants started circulating applications for membership at public schools, business places and private-clubs approaching and inviting only persons of the-Caucasian race. The plaintiffs herein attempted to secure membership application blanks but were unable-to do so.

When the swimming pool was opened for the season of 1947 the plaintiffs presented themselves to the Warren Municipal Swimming Pool and attempted to-gain admittance but were refused. The record shows also that all the negroes of the city who attempted to-gain admission to the pool were refused even though a number of them were world war veterans who were well qualified under the provisions of the constitution adopted by the Veterans Swim Club as veterans who had been honorably discharged from service. It is a peculiar fact appearing of record that applications of these negro veterans would be received in some instances together with the required fees and then later the applications and the fees were returned without explanation. At no time were any negro veterans or their families allowed the use of the swimming pool by the Veterans Swim Club.

There is evidence showing that before and after these incidents, committees of negro citizens called upon the city officials for the purpose of securing permission to use the facilities of the swimming pool but their efforts were unavailing. Thereafter on July 24, 1947, a petition was filed by plaintiffs for a declaratory judgment and mandatory injunction and on August 18, 1947, an amended petition for declaratory judgment, mandatory injunction and equitable relief was filed.

It is the claim of the plaintiffs that the lease and the ordinance under which it was enacted are null •and void as being contrary to the Constitution and laws of the United States and the state of Ohio, and further “that the lease arrangement as to the use of the Warren Municipal Swimming Pool was arbitrarily, maliciously and capriciously done by defendants herein in order to exclude negro citizens, taxpayers and residents illegally from the use of said swimming pool •and that negro citizens, taxpayers and residents are being excluded by the defendant lessees, the Veterans ■Swim Club,” all of which it is claimed constitutes an illegal and unjust exclusion of the use of public property and facilities on the ground alone of race and color.

As hereinbefore stated, the Common Pleas Court -denied the plaintiffs an injunction and held that the plaintiffs were not entitled to relief by way of a declaratory judgment or injunction.

The plaintiffs contend that the question presented in this action is:

“Can a municipality by leasing a swimming pool ■constructed with public funds to a corporation not for profit, relieve itself of the constitutional obligation to afford colored citizens equal rights with those #>of white citizens in the use of recreational facilities thereby provided?”

The defendants claim that the question presented :is “whether or not a municipality has a right to lease ■property when it is determined that it is no longer ■needed and is being operated at a loss.”

We shall consider both questions in the course of this opinion.

In order to arrive at the intent and purpose of the ■city in relation to the lease in question, the facts and -circumstances surrounding the transaction must be scrutinized. The history of events disclosed by the record is such as to lead to the inevitable conclusion that the real purpose of the lease to a private club, however it may have been disguised, was to exclude colored people from the use of this recreational facility, acquired and procured by the use of public funds ■derived from the municipality and from the United States Government.

In piercing superficial forms to view the substance it clearly appears from the conferences had with public officials before the legislation authorizing the lease was adopted in 1946 that efforts were first made to reach an agreement whereby there would be a segregated use of the facilities based alone upon racial distinctions. When these attempts of settlement by •agreement failed the ordinance providing for a lease to a private club was adopted and the Veterans Swim Club was organized for the purpose of securing the lease for the alleged benefit of veterans of “all wars of the United States.” The consideration for the lease was nominal, being merely a percentage of the gross income derived from proceeds of the operation of the pool thus requiring no initial outlay or expenditure by the corporation and no fixed sum by way of rental. There was no responsibility placed upon the lessees to maintain the pool. On the contrary all maintenance and repairs by the terms of the lease are the responsibility of the city. Despite the fact that this was ostensibly for the use of veterans of all wars of the United States, veterans who were colored were not permitted either membership in the club or the use of the pool. The provisions of the constitution of the Veterans Swim Club adopted three days before the lease was signed, were such that the membership could be controlled by an executive committee by secret ballot. The constitution of the association contains no provision either for selecting the executive committee or identifying its members. These and other facts and circumstances surrounding the entire transaction indicate a confirmed and determined policy to exclude the plaintiffs and those similarly situated from the use of the pool and its facilities on the sole ground of their race and color.

This case, therefore, presents for our consideration questions relating to the validity of a colorable leasing arrangement of public property by a municipality which has as its purpose the exclusion of persons of a designated race or color in the use and enjoyment thereof. Thus issues of basic importance are raised concerning constitutional guaranties under the Fourteenth Amendment.

Quite recently the Supreme Court of the United States has decided cases involving civil rights concerning enforcement of restrictive covenants based on race or color as violative of constitutional rights in respect of private property. The Supreme Court in the cases there under review, while dealing with private property rather than public property, held in substance that judicial enforcement by state courts of covenants restricting the use or occupancy of real property to persons of the Caucasian race is violative of the equal protection clause of the Fourteenth Amendment. Conceding that the amendment is directed against state action only and does not reach private conduct, however discriminatory, the Opinions hold that judicial action, even for the enforcement of private agreements, is state action, and so within the amendment’s field of operation; and that the enforcement of restrictive covenants against certain races is none the less discriminatory because courts will enforce them against any race against whom they are directed, including the white race. See Shelley v. Kraemer, 334 U. S., 1, 92 L. Ed., —, 68 S. Ct., 836, decided May 3, 1948. See, also, Hurd v. Hodge, 334 U. S., 24, 92 L. Ed., —, 68 S. Ct., 847, decided May 3, 1948.

In the case of Shelley v. Kraemer, supra, the fifth paragraph of the headnotes as reported in 92 L. Ed., is as follows: